Understanding freedom of expression online and offline

Ritu Srivastava, from Digital Empowerment Foundation (DEF) India, participated in the workshop Freedom of Expression Online: Gaps in Policy and Practice at the Internet Governance Forum in Brazil. She writes:

We are no longer living in an offline society. We are living more and more in an online world, connecting with people from different countries, sharing our thoughts and experiences, protesting online and seeking the same rights that we seek in our daily lives. The question is, do we follow the same rules in the online world as we follow offline?

There is a quest to understand how we are practising freedom of expression in online spaces and whether developing countries have the same set of rules defined by former Special Rapporteur Frank La Rue in his groundbreaking report on freedom of expression online. In pursuit of understanding this aspect, Digital Empowerment Foundation (DEF), the Association for Progressive Communications (APC), Bytes for All, Pakistan, and Derechos Digitales organised a workshop at the 2005 IGF in Brazil, Freedom of Expression Online: Gaps in Policy and Practice .

The workshop aimed to understand how freedom of expression and other human rights are realised in the online context and how these rights are being practised in countries like India, Pakistan, Malaysia, Brazil and Mexico. Another objective of this workshop was to analyse existing national law and legal frameworks, including the absence of national policy frameworks that promote freedom of expression in the country.

To initiate the conversation, Deborah Brown from APC briefly explained the APC-La Rue Framework and how APC is using this framework to measure online freedom of expression based on state obligations through several projects like the EU-funded APC IMPACT project. The framework broadly includes general protection for freedom of expression (legal frameworks); restrictions of online content (such as arbitrary blocking and filtering and criminalising legitimate expression, blocking websites or filtering websites); intermediary liability; disconnecting users from the internet; cyber attacks; the right to privacy and data protection; and access to the internet.

The APC-La Rue Framework on general protections of freedom of expression is applicable globally. Countries can take the framework into account in different ways through constitutions and regional frameworks of human rights. However, various countries are drafting new policies that are not favourable to freedom of expression online.

Luis Fernando Garcia from Red en Defensa de los Derechos Digitales spoke about how Mexico is modelling legislation on the European Court of Justice decision on the right to be forgotten, but using it to protect corrupt public figures. The government is censoring information or making it difficult to access the information that should be available in the public interest. A new cyber crime policy in Mexico is being proposed that would criminalise defamation and using personal data without regard to public interest of information. Mexico had previously scrapped information-related crimes from the criminal code but now they are justifying regulation of online activity.

Issues of freedom of expression online in India are deeply rooted in issues of access. Internet penetration in rural India is limited to 7%, and women internet users in the country are just 17%. DEF adapted the APC-La Rue Framework to understand in-depth the access issue that is directly related to affordability, accessibility, infrastructure, speed and quality of services and availability of local content. The framework has given the least priority to access and local content; however, it is one of the most important issues in developing countries. To seek understanding of online freedom of expression, we conducted a survey among 600 individuals living in rural regions of India. The study found that 37% of users are aware of government regulation or monitoring of content. And if we look at access issues from a linguistic perspective, our research found that only 1% of those surveyed prefer content in their local dialect. This is because of unavailability of content in the local language, or difficulty in understanding. DEF is also responding to emerging issues, such as zero rating, defamation, surveillance and privacy.

Bytes for All, Pakistan customised the APC-La Rue Framework to address the issues of highest concern in the country, including the safety of journalists, freedom of religious expression, and internet shutdowns. Tehmina Zafar from B4A explained that these days, citizens are increasingly taking to online platforms to regain their right to freedom of expression, in a hope to offset the restrictive realities of offline spaces. However, the government is continuously proposing harsh provisions and restrictions through the Prevention of Electronic Crimes Bill. Many times, the government has shut down mobile internet in the name of security.

The context in Malaysia is also not so different from India and Pakistan. The year of 2014 witnessed the investigation and arrest of 100 Malaysians. Interestingly, the government used various laws to arrest and investigate people, including the Sedition Act, Communications and Multimedia Act, Penal Code, and the Printing Presses and Publications Act.

Latin America is following the legacy of colonial times, but its context is special because of the American Convention on Human Rights and the Inter-American Court of Human Rights (IACHR). The IACHR has produced rulings against states that show strong support for freedom of expression and for freedom of information. Because of free trade agreements, laws relating to copyright infringement are being implemented much more strictly in Latin America than even in the USA. In Mexico and Costa Rica, new legislation uses broad language to criminalise online hacking activity, which will also target whistleblowers.

These examples clearly show that interpretations of human rights by state and non-state actors are different depending upon their suitability and choices. Balancing human rights, legislating policies, setting up context and implementing in uniform ways will always be challenging when freedom of expression is balanced with any other right of public interest. This challenge calls for non-discriminatory, autonomous and independent judicial processes. But who is responsible for that judicial mechanism?

The APC-La Rue framework does not cover in detail emerging issues of increasing importance, such as online violence against women and hate speech online. The framework focuses specifically on state obligation to promote and protect freedom of expression but does not cover the responsibiliity of non-state actors to respect freedom of expression online without curbing other rights.

Watch the full workshop video here: